Winnipeg Free Press - PRINT EDITION

Let's skip the preliminaries

Pre-trial hearings do little more than delay justice

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Covering significant crimes as they inch through Manitoba's justice system follows a predictable but utterly frustrating pattern for the general public and media alike.

Say, for example, there's a high-profile homicide case that comes up, as inevitably a few do each year.

There's the tragedy and gravity of the event, followed -- usually very quickly -- by the results of a police investigation.

A suspect is almost always arrested and put before our courts.

The police, without fail and with some reasonable justification, disclose few details of the allegations their investigators uncovered.

Any outside information usually comes in dribs and drabs, often quietly provided by insider sources or family members and friends of the victim who, really, are often as in the dark as everyone else as to what actually went on.

The public is often left to wonder, guess and speculate.


It may sound self-serving, but that's not the fault of the media, whom I believe do their best to report major cases as fully as possible.

The criminal case against the suspect falls into what I've come to describe as the black hole of the court process.

Not for weeks or months, but years.

By the time the matter emerges to be heard in any truly public forum, the public has largely moved on.

Far more importantly, families and friends of victims are left to twist in the wind while the notion they'll see "justice" evaporates as months and years crawl by.

Take the case of Chad Davis, who was brutally killed by two men in a garage on Feb. 6, 2008, but whose body wasn't found until after he'd been missing for many months.

Mere weeks after the discovery of Davis's body near Lac du Bonnet, the men now convicted of killing him were arrested and charged.

The public interest in this case was massive given the unusual circumstances.

The RCMP disclosed very little to the public of what they found.

Behind the scenes, disclosure of the RCMP evidence came in droves and was distributed, as is usual and necessary, by the Crown to defence lawyers.

At bail hearings a few months later, the Crown laid out its case against the men. Keep this in mind.

None of it was reportable at the time because of publication bans.

The suspects received bail, partly because certain forensic results from the RCMP hadn't yet been completed.

It wasn't until nearly two years later a preliminary inquiry in the case was held in provincial court, over nine days in October 2010.

Much of the hearing involved the examination of one crucial witness.

At the end of it all, both suspects consented to stand trial on a first-degree murder charge.

The sitting judge wasn't asked to make a decision of whether they should or not.

It wouldn't be until January of this year -- more than three years later -- that their jury trial began.

The crux of the Crown's case as revealed at the bail hearing five years earlier, then the preliminary hearing, remained essentially the same.

So, at the end of it all, one is left wondering: What was the point of the ocean of time between bail and the trial? Especially since the preliminary hearing -- often billed as a vital feature and safeguard of the court system -- really, at the end of it all, only involved testing the one witness?

Admittedly, the Davis case was not routine given its seriousness. It was one of very, very few matters that went as far as a jury trial.

If there had been another way to test the witness and forgo the preliminary hearing, wouldn't it have sped up the process, shaved years off the case and brought a measure of closure to Davis's family and the public sooner?

Manitoba's top three judges say they believe there is.

Reading between the lines of what they disclosed at a recent news conference, it's clear: Judges are frustrated with the amount of delay prompted by preliminary hearings that serve no meaningful purpose, or are being used as unnecessary mini-trials that clog the courts.

Remember: By the time a "prelim" rolls around, disclosure to the defence of what the evidence will be at a trial is more often than not full and complete.

Yet, we spend considerable time, money and effort just to have a judge hear -- and not always have to weigh -- evidence using a lower bar than the police use when deciding whether to lay the charge that starts a proceeding in the first place.

"The test for committal to trial is a very, very low standard," provincial court Chief Judge Ken Champagne said.

"In fact, the test for charging by police, and more importantly, the test for prosecution is a higher standard. So you ask yourself again, if that purpose doesn't really exist any more, why are we having preliminary inquiries?"

The judges said they're beginning a pilot project aimed at reducing the number of these hearings.

One new process being imagined: If defence lawyers want to test an individual witness, they could now do so in a forum outside court, one comparable to discovery hearings in civil court cases.

I fully admit that in the past, I've written about and defended the preliminary hearing process. I will continue to do so in cases where they can be justified as necessary.

I will always believe an accused person should be afforded as many procedural protections as the law allows them.

That doesn't mean the preliminary hearing, as it exists today, will always provide that.

I've seen many cases over the years go forward from a prelim on the charge as initially laid by police only to collapse, rightfully, at trial. Sometimes these hearings are just a waste of time, money and effort -- a tactic used to delay the inevitable. That's not fair to victims, the general public nor accused persons.

Despite this, it's gone on for years now. We should be applauding the judges for finally saying enough is enough.

Republished from the Winnipeg Free Press print edition July 13, 2014 A1

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